Section 377: Government leaves decision to the wisdom of the Supreme Court

KK Venugopal

"We are (debating) on whether the relationship between two adults is itself a manifestation of Article 21 of the Constitution", he said.

"Unnatural offences. -Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". The determination of order of nature is not a constant phenomenon. He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution.

In 2009 the Delhi High Court effectively decriminalised gay sex, saying a ban violated fundamental rights, but the Supreme Court reinstated it in 2013 after religious groups successfully appealed. According to BuzzFeed News, the Supreme Court argued in that ruling that India's LGBTQ community was small relative to the country's population and that few people had ever been prosecuted under Section 377.

The hearing comes nearly a year after the Supreme Court ruled that individual privacy is a fundamental right, a verdict constitutional experts say has a bearing on the homosexuality ban.

Subsequently in December 2013, an Apex Court bench in the Kaushal case, reversed the High Court verdict and upheld the constitutional validity of Section 377.

Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. They also contended that a larger constitution bench be formed to hear all petitions on the issue. "Those are individual issues we can not pre-judge now", Chief Justice of India (CJI) Dipak Misra said.


The court will begin hearing numerous petitions arguing that gay sex between consenting adults must be made legal.

The assurance to the Centre came after additional solicitor-general Tushar Mehta objected to a suggestion from Justice D.Y. Chandrachud, another judge on the bench headed by the CJI. The top court on Monday refused to adjourn the hearing despite the Centre's plea for more time to file its response on the issue.

ASG Mehta said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages. Counsel for the petitioners will continue with their submissions today.

In a short affidavit, the government told the court that it should decide only whether Section IPC 377 needed to be criminalised and no other issue. 20 of them had written their personal encounters, the key highlights of which pointed to one factor- discrimination based on their sexual orientation.

"The Petitioners can not overcome a lurking fear that their consensual relationships, even within the privacy of their homes, may invite coercive state action at the hands of a busybody, rival, political party, or any other 3rd party who has no bona fide interest with the private lives of the Petitioners, and is motivated only by malice/prejudice", stated the petition.

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